BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

AMERICAN FRAME MANUFACTURING COMPANY, INC.
3025 Beyer Boulevard, Suite E-105
San Diego, CA 92154

 

                              Employer

 

 

Docket No.

01-R6D2-199

 

DENIAL OF PETITION

FOR RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code hereby denies the petition for reconsideration filed in the above-entitled matter by American Frame Manufacturing Company, Inc. (Employer).

JURISDICTION

On May 11, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted a planned programmed high hazard inspection at a place of employment maintained by Employer at 3025 Beyer Boulevard, Suite E-105, San Diego, California (the site).

On August 17, 2000, the Division issued a citation to Employer for an alleged regulatory violation of section 14301(b) [Log 200] and alleged general violations of section 3203(a) [Injury and Illness Prevention Program] and section 6151(c)(4) [portable fire extinguishers] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 Civil penalties totaling $585 were proposed for the alleged violations.

Employer filed timely appeals contesting the existence of the violations and the reasonableness of the proposed civil penalties.

A hearing was held before Ashaki A. Hesson, Administrative Law Judge (ALJ) of the Board. Geza Hamalko, Owner, represented Employer. Phil Valenti, Senior Safety Engineer, represented the Division.

On May 17, 2002, the ALJ issued a decision denying Employer’s appeal and assessing the civil penalties proposed by the Division.

On June 10, 2002, Employer filed a timely petition for reconsideration with the Board. On July 11, 2002, the Division filed an answer to the petition.

ISSUE

Does Employer’s petition for reconsideration raise issues with sufficient detail and clarity that the Board should grant the petition for reconsideration?

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Employer’s petition for reconsideration states that it is based upon the following facts:

1. The citations were of regulatory nature of record keeping of accidents that we had none, and Cal/OSHA No. 20 Log that we did not have, nevertheless all citations were immediately rectified.
2. The finances of the company is such that its ability to pay the assessed penalties in whole or in part would jeopardize its commitment to provide a safe and healthful work environment for its employees.
3. In order to maintain operations since the inspection American Frame had to sublease its 10,000 sq. foot warehouse, reduce working hours in order to meet payroll and tax requirements.
4. Since September 11, 2001, our sales unfortunately have suffered a serious financial set back from which we have not been able to recover, as well as from heavy competition from China, therefore American Frame will close its warehouse at 3025 Beyer Boulevard, #E-105, San Diego, California by July 30, 2002. Therefore, we humbly request that you revisit the decision of Citation 1 and the penalty be dismissed by July 30th, 2002.

Labor Code section 6617 sets forth five grounds upon which a petition for reconsideration may be based:

(a)That by such order or decision made and filed by the appeals board or hearing officer, the appeals board acted without or in excess of its powers.
(b)That the order or decision was procured by fraud.
(c)That the evidence does not justify the findings of fact.
(d)That the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing.
(e)That the findings of fact do not support the order or decision.

Labor Code section 6616 provides that:

The petition for reconsideration shall set forth specifically and in full detail the grounds upon which the petitioner considers the final order or decision made and filed by the appeals board or a hearing officer to be unjust or unlawful, and every issue to be considered by the appeals board.

These requirements are mandatory. Louis G. Beary Plastering, Cal/OSHA App. 76-1296, Denial of Petition for Reconsideration (Nov. 14, 1977). Employer’s petition plainly failed to meet these statutory requirements.

The Board has adopted regulations implementing this statutory provision. Section 391 of the Board’s regulations states that “…[t]he petition for reconsideration will be denied if it contains no more than allegations of the statutory grounds for reconsideration, unsupported by specific references to the record and principles of law involved.”

The Board has consistently rejected petitions that do not contain sufficient detail. (See, e.g., Lusardi Construction Company, Cal/OSHA App. 86-318, Denial of Petition for Reconsideration (Oct. 29, 1986); Paterson Pacific Parchment Co., Cal/OSHA App. 80-1238, Denial of Petition for Reconsideration (Apr. 22, 1981).) The Board stated the policy underlying this specificity rule in Lusardi Construction Company, supra, at pg. 2:

Without specific and detailed allegations in the petition, there is nothing of substance for the Appeals Board to review and weigh against the judge’s findings and decision to determine whether or not to grant Employer’s petition for reconsideration.

Our review of Employer’s allegations reveals them to be conclusionary and without merit and we find that these allegations do not rise to the level of specificity that warrant granting the petition for reconsideration.

We note further, that in Eagle Environmental, Inc., Cal/OSHA App. 98-1640, Decision After Reconsideration (Oct. 19, 2001); we clearly spelled out the history of financial hardship relief and the criteria necessary to request relief under that doctrine. Nothing in Employer’s petition establishes, even remotely, the criteria set forth in Eagle Environmental and nothing in the petition establishes that Employer’s financial hardship is related in time and costs incurred to correcting the cited violations. Conard House, Cal/OSHA App. 95-931, Decision After Reconsideration (July 27, 1999).

DECISION

The Board denies Employer’s petition for reconsideration and affirms the ALJ’s decision denying Employer’s appeal and assessing civil penalties totaling $585.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: July 30, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.